Portland seeks reversal of ruling against loitering ordinance

PORTLAND — As the late-morning temperatures struggled to reach zero on Thursday, Jan. 8, Harry Farmer, 27, took what he sees as his rightful spot in the median strip on Franklin Street where it intersects Marginal Way.

“I spend half my day looking for work, half out here,” he said. “It is a freedom-of-speech issue.”

A day later, city attorney Jennifer Thompson asserted the city’s right to keep Farmer and others off median strips, in an oral argument before the U.S. Court of Appeals for the First Circuit in Boston.

The city appealed a Feb. 12, 2014, decision by Judge George Singal of the U.S. District Court in Portland, which struck down a ban on loitering in median strips. The amendment to ordinance Chapter 25 governing “Streets, Sidewalks and Other Public Places” was passed unanimously by City Councilors on July 15, 2013.

“We understand that panhandling is a First Amendment right, but the reason we are here today is a public safety concern, or what I would call a public safety emergency,” Police Chief Michael Sauschuck told the council that evening.

The American Civil Liberties Union of Maine and Kevin P. Martin of Goodwin Procter asked appellate Judges Jeffrey R. Howard, Norman H. Stahl, and David J. Barron not to reverse Singal’s decision in the case of Cutting, et al v. City of Portland.

The city’s action prohibited anyone from using median strips except when crossing streets as a matter of public safety. City attorneys said it would still allow the areas to be used for political signs related to elections and was not a violation of free speech on public grounds.

The ACLU initially challenged the ordinance on behalf of plaintiffs Michael Cutting, Wells Staley-Mays and Allison Prior, who claimed use of the median strips was allowed for political and panhandling purposes. By limiting extended access to medians only to those placing political signs, the plaintiffs claimed the ordinance was a content-based restriction on public space in violation of the First Amendment.

“The Court finds that the Ordinance is not necessary to serve the city’s interest in public safety,” Singal ruled, adding “panhandling and political signs, is expressive activity protected by the First Amendment.”

In asking the appellate court to overturn Singal’s decision, Thompson’s urged judges to apply a “de novo review,” as if it were hearing the question for the first time, without claiming specific errors in Singal’s opinion.

“The Ordinance’s sole focus is on regulating conduct, namely lingering in the middle of City streets, between lines of moving traffic, by standing, sitting, or staying on the City’s median strips,” she said.

Farmer, a native of Boothbay Harbor, said he had been in the city for about a year. He is looking for some kind of production work, perhaps at a seafood processing company. A change of scenery with a move to the shelter in Alfred operated by York County Shelter Programs has also crossed his mind.

Harry Farmer seeks help Thursday, Jan. 8, at the intersection of Franklin Street and Marginal Way in Portland. “Hanging out (in shelters) while being in recovery is tough,” Farmer said. “I’d rather be out here.”

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Portland City Hall reporter for The Forecaster. Baltimore native, lived in Maine since 1989. A journalist since 2005, covering much of Cumberland and York counties. I joined The Forecaster in 2012.